Kollias and National Disability Insurance Agency (No 2)
[2023] AATA 1702
•13 June 2023
Kollias and National Disability Insurance Agency (No 2) [2023] AATA 1702 (13 June 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/9291
Re:George Kollias
APPLICANT
AndNational Disability Insurance Agency (No 2)
RESPONDENT
DECISION
Tribunal:Member P Smith
Date:13 June 2023
Place:Sydney
The request made to the Tribunal by the Applicant on 9 May 2023 to summon Rebecca Beileiter, Senior Occupational Therapist and Kerry O’Riley, Musculoskeletal Manipulative Physiotherapist, to produce documents to the Tribunal is refused.
...............................[SGD].........................................
Member P Smith
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME DIVISION – Request made to the Tribunal by the Applicant to exercise its discretion under subsection 40A(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to issue summonses to the Respondent’s two expert witnesses to produce documents to the Tribunal – whether the Applicant’s request for the production of documents is for the purpose of a proceeding before the Tribunal - whether the request lacks a legitimate forensic purpose and whether the request is relevant to the substantive issues the Tribunal is yet to determine - whether the Tribunal should exercise the discretion in subsection 40A(2) of the AAT Act to refuse the Applicant’s request – request to issue summons refused
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth), ss 33, 33(2), 34, 100(6)(a)
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 2A(b), 37, 40A, 40A(1)(b), 40A(2), 40A(3)CASES
Re: General Merchandise & Apparel Group PL and Chief Executive Officer of Customs [2009] AATA 843; 51 AAR 1
Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648
PJYY and Commissioner of Taxation (Taxation) [2022] AATA 4933
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-101
Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 at 103; [1989] FCA 248
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Comcare v Maganga [2008] FCA 285; 47 AAR 487
SECONDARY MATERIALS
National Disability Insurance Scheme (Supports for Participants) Rules 2013, Part 5
REASONS FOR DECISION
Member P Smith
INTRODUCTION
George Kollias (the Applicant) is a 47-year-old participant of the National Disability Insurance Scheme (the NDIS). He has a diagnosis of relapse remitting multiple sclerosis (MS)[1] for which he receives supports funded under the NDIS. The Applicant received his MS diagnosis in July of 2010[2].
[1] See page 9 of the NDIS OCCUPATIONAL THERAPY REPORT of Melinda Coffey, Occupational Therapist, dated 4 May 2021.This report is located at T1A of the Tribunal documents (T-documents) the Respondent lodged with the Tribunal on 5 January 2022 as required under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
[2] See page 8 of the NDIS OCCUPATIONAL THERAPY REPORT of Melinda Coffey, Occupational Therapist, dated 4 May 2021 at T1A of the T-documents.
The Applicant, with the assistance of his partner and, for the purpose of this proceeding, his nominated representative, Marouly Kollias (Ms Kollias), made an application to the Tribunal on 30 November 2021[3] to review a decision[4] made by the National Disability Insurance Agency (the Respondent) to confirm[5] a decision made by a delegate of the Chief Executive Officer of the Respondent on 23 November 2021 to approve a statement of participant supports in the Applicant’s Plan on 4 November 2021 under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth)[6] (the NDIS Act).
[3] For a copy of the application the Applicant made to the Tribunal on 30 November 2021, see T1 of the T-documents.
[4] For a copy of the Respondent’s Internal Review Decision dated 23 November 2021, see T1C of the T-documents.
[5] See subsection 100(6)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[6] For a copy of the statement of participant supports approved in the Applicant’s Plan by the Respondent on 4 November 2021 under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth), see T7 of the T-documents.
For the purpose of this review, the substantive issue for the Tribunal to determine is whether the nine supports sought by the Applicant (identified below) are, on the evidence, reasonable and necessary for the purpose of sections 33 and 34 of the NDIS Act and Part 5 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules). The nine supports sought by the Applicant include:
·Meal preparation and delivery totalling $24,570.00 (support one);
·Exercise physiology (weekly) totalling $10,631.61 (support two);
·Physiotherapy (twice weekly) including report writing totalling $15,401.97 (support three);
·Personal training (weekly) totalling $5,200.00 (support four);
·Handrails at a price of $4,400.00 (support five);
·Additional funding for core supports to a total sum of $58,010.00 (support six);
·Additional funding for capacity building to a total sum of $38,000.00 (support seven);
·House cleaning and domestic duties (3 hours a week) totalling $7,831.20 (support eight); and
·House and yard maintenance (3 hours a week) totalling $7,690.80 (support nine).
The Tribunal will hold a resumed hearing of the Applicant’s application on the substantive issue in June 2023 over the course of three days commencing on 16 June 2023. Following the conclusion of the hearing of the Applicant’s application, the Tribunal will determine whether the supports the Applicant is seeking are, on the evidence, reasonable and necessary for the purpose of sections 33 and 34 of the NDIS Act and Part 5 of the Support Rules.
REQUEST TO SUMMONS PERSONS TO PRODUCE DOCUMENTS
On 9 May 2023, Ms Kollias sent an email to the Tribunal requesting that the Tribunal exercise the discretion it has in subsection 40A(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). This was done in order to summons the Respondent’s expert witnesses, namely, Rebecca Beileiter (Ms Beileiter) and Kerry O’Riley (Ms O’Riley), to produce documents to the Tribunal, that the Applicant and Ms Kollias consider to be relevant to the Applicant’s application. Attached to her email were two completed Request to Issue Summons Forms to the Tribunal and two completed Summons to Produce Documents Forms addressed to Ms Beileiter and Ms O’Riley.
Ms Beileiter is a Senior Occupational Therapist employed by Occupational Therapy Services: All Ages All Stages. Ms O’Riley is a Musculoskeletal Manipulative Physiotherapist at Shellharbour Health. The Respondent has listed both Ms Beileiter and Ms O’Riley on their Hearing Certificate as persons they intend to call to give evidence at the resumed hearing in June 2023.
On the completed Request to Issue Summons Form, the reason given to the Tribunal in support of the Applicant’s request to summon Ms Beileiter to produce documents to the Tribunal is that the Applicant and his representative need relevant information in order for them to be able to cross-examine Ms Beileiter who is a witness for the Respondent in the Applicant’s case. The Applicant stated: ‘that were written for George Kollias by Rebecca Beileiter and instructed by the Respondent to do so’. A further reason given by the Applicant was: ‘because for the past 2 years since my NDIS review has been in place since 2021, my NDIS funding and budget has been reduced by $64,000’.
On the completed Summons to Produce Documents Form addressed to Ms Beileiter at her practice address, the Applicant stated that Ms Beileiter is required to produce to the Sydney Registry of the Tribunal at or before 8.45am on 22 May 2023 ‘all records and correspondence including ALL emails between Sharon Sangha, the Respondent and the NDIA and Rebecca Beileiter, both OT Reports (or any other OT reports written), diary notes, records of appointments, file notes, reports, letters, photographs or other documents arising from or otherwise relating to George Kollias from 1 January 2022 to present’.
On the completed Request to Issue Summons Form, the reason given to the Tribunal in support of the Applicant’s request to summon Ms O’Riley to produce documents to the Tribunal is that the Applicant and his representative need this relevant information in order for them to be able to cross-examine Ms O’Riley who is the Respondent’s witness in the Applicant’s case. The Applicant stated: ‘that were written for George Kollias by Kerry O’Riley and instructed by the Respondent to do so’. A further reason given by the Applicant was ‘because for the past 2 years since my NDIS review has been in place since 2021, my NDIS funding and budget has been reduced by $64,000’.
On the completed Summons to Produce Documents Form addressed to Ms O’Riley at her practice address the Applicant stated that Ms O’Riley is required to produce to the Sydney Registry of the Tribunal at or before 8.45am on 22 May 2023 ‘all records and correspondence including ALL emails between Sharon Sangha, the Respondent and the NDIA and Kerry O’Riley, ALL Reports (or any other Reports written), diary notes, records of appointments, file notes, reports, letters, photographs or other documents arising from or otherwise relating to George Kollias from 1 January 2022 to present’.
On 16 May 2023, the Respondent sent an email advising the Tribunal that they opposed the two summonses requested by the Applicant on the basis that they lacked a legitimate forensic purpose and thus were not relevant to the issues in dispute.
Before the hearing of the Applicant’s application resumes on 16 June 2023, it is necessary for the Tribunal to determine the issue of whether the Tribunal should exercise the discretion in subsection 40A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to refuse to issue summonses to Ms Beileiter and Ms O’Riley to produce documents to the Tribunal.
RELEVANT BACKGOUND
On 1 July 2022, the Respondent’s legal representative sent a briefing letter via email to Ms Beileiter requesting that Ms Beileiter conduct an in-person functional capacity assessment of the Applicant on 6 July 2022 and to prepare a report for the purpose of this proceeding[7].
[7] See Annexure “B” to the Affidavit deposed by Ada Oi-Yee Wong on 1 June 2023 and lodged with the Tribunal on 1 June 2023.
On 6 July 2022, Ms Beileiter attended the home of the Applicant and Ms Kollias for the purpose of conducting a functional capacity assessment of the Applicant.
On 22 July 2022, the Respondent’s legal representative received an undated functional capacity assessment report from Ms Beileiter via email. Both the Applicant and Ms Kollias were copied into this email[8].
[8] See Annexure “C” to the Affidavit deposed by Ada Oi-Yee Wong on 1 June 2023 and lodged with the Tribunal on 1 June 2023.
On 22 August 2022, the Respondent’s legal representative sent an email to Ms Beileiter requesting that she provide answers to supplementary questions arising from her undated report[9].
[9] See Annexure “D” to the Affidavit deposed by Ada Oi-Yee Wong on 1 June 2023 and lodged with the Tribunal on 1 June 2023.
On 29 August 2022, the Respondent’s legal representative received an email from Ms Beileiter attaching her revised report dated 26 August 2022.
On 7 September 2022, the Respondent lodged with the Tribunal and provided to the Applicant the report of Ms Beileiter, dated 26 August 2022. On 13 September 2022 the Respondent lodged with the Tribunal and provided to the Applicant the report of Ms O’Riley dated 9 September 2022. The Respondent relies on these two reports for the purpose of this proceeding.
On 8 September 2022, the Respondent’s legal representative sent a briefing letter via email to Ms O’Riley to review material before the Tribunal and to prepare a report for the purpose of this proceeding[10].
[10] See Annexure “E” to the Affidavit deposed by Ada Oi-Yee Wong on 1 June 2023 and lodged with the Tribunal on 1 June 2023.
On 9 September 2022, Ms O’Riley prepared her report following her review of the material that had been provided to her by the Respondent’s legal representative on 8 September 2022.
Also on 9 September 2022, Ms Kollias sent an email to the Respondent’s legal representative referring to the report of Ms Beileiter that they both received by email on 22 July 2022. In her email, Ms Kollias stated this to be the only Occupational Therapist report relevant to the Applicant that they had received from Ms Beileiter by way of email on 22 July 2022. Ms Kollias stated further in her email that she wanted Ms Sangha to place the report on the Applicant’s file and that she considered the report was helpful evidence to the Applicant’s case, and moreover that the Applicant intended to rely on the report at the hearing.
On 1 June 2023, the Respondent lodged with the Tribunal and provided to the Applicant, written submissions addressing the Tribunal on the question of whether it should exercise its discretion to refuse to issue summonses to Ms Beileiter and Ms O’Riley to produce documents to the Tribunal.
Also on 1 June 2023, the Respondent lodged with the Tribunal and provided to the Applicant, an Affidavit deposed by Ada Oi-Yee Wong (Ms Wong) on 1 June 2023. Annexed to Ms Wong’s Affidavit are a number of documents relevant to the case. This includes as follows:
(a)A copy of the Respondent’s briefing letter to Ms Beileiter dated 1 July 2022[11];
(b)A copy of Ms Beileiter’s report provided to the Respondent’s legal representative, the Applicant and Ms Kollias via email on 22 July 2022[12];
(c)A copy of the Respondent’s email dated 22 August 2022 to Ms Beileiter with supplementary questions in response to the undated report of Ms Beileiter she sent to the Respondent’s legal representative, the Applicant and Ms Kollias via email on 22 July 2022[13];
(d)A copy of Ms Beileiter’s report dated 26 August 2022 that was lodged with the Tribunal and provided to the Applicant on 13 September 2022[14]; and
(e)A copy of the Respondent’s briefing letter to Ms O’Riley dated 8 September 2022[15].
[11] See Annexure “B” to the Affidavit deposed by Ada Oi-Yee Wong on 1 June 2023 and lodged with the Tribunal on 1 June 2023.
[12] See Annexure “C” to the Affidavit deposed by Ada Oi-Yee Wong on 1 June 2023 and lodged with the Tribunal on 1 June 2023.
[13] See Annexure “D” to the Affidavit deposed by Ada Oi-Yee Wong on 1 June 2023 and lodged with the Tribunal on 1 June 2023.
[14] See pages 1 to 11 of the Respondent’s Tender Bundle.
[15] See Annexure “E” to the Affidavit deposed by Ada Oi-Yee Wong on 1 June 2023 and lodged with the Tribunal on 1 June 2023.
On 3 June 2023, the Applicant lodged with the Tribunal and provided to the Applicant an email containing the Applicant’s written submissions on the question of whether the Tribunal should exercise its discretion to refuse to summons Ms Beileiter and Ms O’Riley to produce documents to the Tribunal. The Applicant filed further submissions via email on 4 June 2023.
As can be seen from the relevant background set out earlier in my reasons, the report of Ms Beileiter dated 26 August 2022 and the report of Ms O’Riley dated 9 September 2022 have already been provided to the Applicant and to the Tribunal by the Respondent.
THE LAW
Section 40A of the AAT Act gives the Tribunal the power to summon persons to appear before the Tribunal to give evidence or to produce documents.
Subsection 40A(1) of the AAT Act provides that for the purpose of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a)appear before the Tribunal to give evidence;
(b)produce any document or other thing specified in the summons.
Subsection 40A(2) of the AAT Act provides that the President or an authorised member or an officer of the Tribunal may refuse a request to summon a person.
Subsection 40A(3) of the AAT Act provides that a person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to appear before the Tribunal unless:
(a) the summons or another summons requires the person to appear before the Tribunal; or
(b) the Tribunal directs the person to appear before the Tribunal.
The power given to the Tribunal to issue a summons under subsection 40A(1) of the AAT Act is an inherent requirement for the purpose of a proceeding before the Tribunal. The power may not be used in the course of a proceeding for the purposes of obtaining documents that may assist one or more of the parties to the proceeding to pursue a collateral purpose even if it is a purpose that bears a relationship to the decision being reviewed by the Tribunal but does not raise an issue that is reviewable. As it would be put in the context of a subpoena, it must be issued in good faith, and so bona fide, for a purpose relevant to the review[16].
[16] See Re: General Merchandise & Apparel Group PL and Chief Executive Officer of Customs [2009] AATA 843; 51 AAR 1 at [231].
A party to a proceeding in which the summons was issued, but who did not request its issue, may have standing to request that it be set aside if that party has a “sufficient interest”. Being a party to the proceedings does not necessarily establish a sufficient interest, this requires an examination of the relationship between the moving party and the documents to be produced, for example, whether there is a proprietary interest, claimed confidential information or public interest privilege[17]. A Tribunal can also set aside the summons on its own motion, if it considers it appropriate to do so in the circumstances of the case[18].
[17] See Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648 at 649-650.
[18] Ibid.
The principles which govern the issue of a summons are the same principles which govern the issue of a subpoena in court proceedings[19]. This includes whether the summons has a legitimate forensic purpose including an “apparent relevance to the issues in the principal proceeding” and whether the issuing of the summons would be seriously and unfairly burdensome or prejudicial[20].
[19] See PJYY and Commissioner of Taxation (Taxation) [2022] AATA 4933 at [9] citing Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; see, for summary of these principles: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-101.
[20] See Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 at 103; [1989] FCA 248 at [44].
It will generally be sufficient evidence of a legitimate forensic purpose if the documents sought to be produced have an apparent relevance to the issues in the case and/or bear upon the cross examination of witnesses expected to be called in proceedings[21]. A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything, but rather that they relate to the proceedings such that there is a “real possibility they may assist in the resolution of proceedings”[22]. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council[23], the New South Wales Court of Appeal held that:
no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute.
[21] See Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [80].
[22] See Comcare v Maganga [2008] FCA 285; 47 AAR 487 at [37].
[23] [2021] NSWCA 145 at [89].
Furthermore, the power to issue or refuse to issue a summons is a discretionary power the Tribunal must only exercise for a proper purpose. This includes pursuing the objective of providing a mechanism of review that is fair, just, economical, informal, and quick[24].
[24] See subsection 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
DISCUSSION
I have made the decision to refuse the Applicant’s request to issue summonses to Ms Beileiter and Ms O’Riley to produce documents to the Tribunal for the following reasons.
In addition to the explanation given by the Applicant in his Request to Issue Summons Forms at paragraphs [7] and [9] above, it is noted that since September 2022, the Applicant and Ms Kollias have alleged over the course of this proceeding via the numerous emails sent to the Tribunal since at least late April 2023 to early June 2023 and also at hearings that the Respondent, their legal representatives, and their expert witnesses, have engaged in fraud, corruption and illegal activity. This is in regard to the material sought by the Applicant under summons.
Ms Kollias’ emails and the statements made during hearings demonstrate that the purpose for the Applicant’s request to issue a summons to Ms Beileiter and Ms O’Riley is not relevant for the purpose of the proceeding. Rather, the purpose appears to be that the Applicant intends to pursue a line of enquiry, arguing that the Respondent and their legal representatives and expert witnesses have engaged in corruption, fraud, and illegal activity. This is not the purpose of the review that the Applicant has sought in his application to the Tribunal.
In the present case, it is the function of the Tribunal to conduct a review on whether the supports sought by the Applicant as identified above at paragraph [3] are reasonable and necessary for the purpose of sections 33 and 34 of the NDIS Act and Part 5 of the Support Rules. As the summonses have not been requested for this purpose, the Tribunal has formed the view that it would not be appropriate to issue the summonses to Ms Beileiter and Ms O’Riley.
In the present case, the evidence that could be produced to the Tribunal under summons does not conform to the Tribunal’s statutory obligations to provide a mechanism of review that is ‘fair, just, economical, informal and quick’[25] as it lacks relevance.
[25] See subsection 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
Ms Beileiter and Ms O’Riley are both independent experts retained by the Respondent in these proceedings in order to conduct an independent assessment of the Applicant and any relevant material that is before the Tribunal. They have both provided reports setting out their expert findings, opinions and recommendations following their assessments of the Applicant and the material that they were provided by the Respondent in their briefing letters, which have now been provided to the Applicant. Therefore, as all of their evidence (excluding oral evidence) is already before the Tribunal there is, in my view, no reason to issue summonses to Ms Beileiter and Ms O’Riley to produce other documents that do not have relevance to the issue the Tribunal is yet to determine.
CONCLUSION
For the reasons outlined above, the Tribunal is satisfied that the request made by the Applicant should be refused.
DECISION
The request made to the Tribunal by the Applicant on 9 May 2023 to summons Rebecca Beileiter, Senior Occupational Therapist and Kerry O’Riley, Musculoskeletal Manipulative Physiotherapist, to produce documents to the Tribunal is refused.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member P Smith
................................[SGD]........................................
Associate
Dated: 13 June 2023
Date of hearing: On the Papers Date final submissions received: 5 June 2023 Advocate for the Applicant: Ms M Kollias Solicitors for the Respondent: Ms A Wong, Mills Oakley
1
9
0